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2017 DIGILAW 100 (RAJ)

Bhanwar Lal S/O Sh. Devi Chand v. Mohan Lal S/O Sh. Kheta Ramji

2017-01-09

SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. By way of this writ petition, the petitioners have approached this Court for challenging the order dated 18.8.2010 passed by the learned Civil Judge (J.D.), Sheoganj in Civil Suit No.19/2004 whereby, the application preferred by the petitioners/defendants for setting aside the ex-parte proceedings was rejected. 2. Facts in brief are that the respondents/plaintiffs filed a suit for permanent injunction and declaration in the Court of learned Civil Judge, Sheoganj arraying the present petitioners and few more as defendants. Appearance was put in on behalf of the petitioners on 10.11.2004. Time was sought for filing reply. Despite repeated opportunities, reply was not filed on which, the trial Court closed the written statement of the present petitioners by order dated 19.1.2005. Thereafter owing to the indifference shown on behalf of the petitioners in prosecuting the matter, the trial Court directed ex-parte proceedings on 1.3.2007. An application under Order 9, Rule 7 CPC signed by the petitioner no.2 Kishore Kumar alone was filed before the trial Court on 4.5.2010 for setting aside the ex-parte proceedings. In this application, Kishore Kumar pleaded that he and the other defendants were residing at different places in India and their visits to Sheoganj were negligible. Counsel engaged by the petitioners did not inform them about the proceedings and did not summon them to plead the matter. It was claimed that Kishore kumar came from Chennai to Sheoganj on 26.4.2010 on which somebody informed him that ex-parte proceedings have been undertaken in the suit. Thereafter, he procured the certified copies and filed the application for setting aside the ex-parte proceedings which was rejected on 18.8.2010. Hence, this writ petition. 3. Learned counsel for the petitioners places reliance on the following judgments :- (1) G.P. Srivasatava v. R.K. Raizada and others reported in (2000) 3 SCC 54 . (2) State of Nagaland v. Lipok AO and others reported in (2005) 3 SCC 752 . (3) Narayan Lal Bagra & Anr. v. Hanuman Sharma & Ors. reported in 2008 (1) DNJ (Raj.) 344. and urges that the parties should not be penalised for the fault of the counsel. The counsel engaged by the petitioners did not prosecute the matter properly and did not inform them about the ex-parte proceedings drawn by the trial Court and as such, they could not plead the matter before the trial Court properly. and urges that the parties should not be penalised for the fault of the counsel. The counsel engaged by the petitioners did not prosecute the matter properly and did not inform them about the ex-parte proceedings drawn by the trial Court and as such, they could not plead the matter before the trial Court properly. He submits that as soon as information was received, a timely application was moved for setting aside the ex-parte proceedings. He thus prays that the impugned order should be set aside and one opportunity be granted to the petitioners to file written statement and to allow them to lead evidence after setting aside the ex-parte proceedings. 4. Per contra, learned counsel for the respondents contends that the petitioner Kishore Kumar was prosecuting two other matters in the same Court and despite that he did not take care to prosecute the present matter in the trial Court. Application for setting aside the ex-parte proceedings was filed after delay of nearly 3-4 years and as such, the same was rightly rejected by the trial Court.. 5. I have heard and considered the arguments advanced at the Bar and have gone through the material available on record. 6. There cannot be any dispute about the ratio expounded by the Hon'ble Supreme Court in the judgments cited at Bar. However, the question which needs to be examined is whether or not sufficient cause was shown by the defaulting party (petitioners) before the trial Court so as to justify their claim for setting aside the ex-parte proceedings. In the case at hand, the application for recalling of the ex-parte proceedings was signed only by Kishore Kumar and none of the other defendants. Furthermore, the counsel for the petitioner did not dispute the fact that two other cases in which Kishore Kumar is a party were going on in the same Court and despite that, in the present case no effort was made to file written statement or to cross examine the witnesses. The application for setting aside the ex-parte proceedings was filed after a huge delay of nearly 5 years. In view of the above factual scenario, this Court is of the opinion that the judgments cited by the learned counsel for the petitioner are totally distinguishable on facts and have no application to the case at hand. The application for setting aside the ex-parte proceedings was filed after a huge delay of nearly 5 years. In view of the above factual scenario, this Court is of the opinion that the judgments cited by the learned counsel for the petitioner are totally distinguishable on facts and have no application to the case at hand. The trial Court, while observing that there was an undue and unexplained delay on part of the defendants in filing the application for setting aside the ex-parte proceedings, was perfectly justified in rejecting the same as the petitioners failed to show sufficient cause for non-appearance before the Court on the dates fixed for hearing. 7. Thus, I am of the firm opinion that the impugned order exfacie does not suffer from any illegality, irregularity, perversity or error apparent on the face of record so as to require interference in exercise of the supervisory writ jurisdiction of this Court. 8. Resultantly, the instant writ petition, being devoid of any merit, is hereby dismissed. The trial Court is directed to decide the suit expeditiously. Stay petition also stands dismissed. No order as to cost.